Can an individual commit a hate crime against a member of a group of people of which he himself is a part? That interesting question has now arisen in a New York case in which the state is already arguing that one need not be motivated by hatred to commit a hate crime.

One of the defendants accused of killing a gay man in Brooklyn last year because of his sexual orientation offered a startling courtroom revelation yesterday: He, too, is gay.

So said the lawyer for Anthony Fortunato, 21, one of four men accused of chasing a gay man to his death on the Belt Parkway during a robbery on Oct. 8, 2006.

All along, homosexuality has defined the case. Prosecutors have used it as a sword, seeking heavier sentences for a hate crime.

As the trial began in Brooklyn Supreme Court yesterday, Mr. FortunatoÂ’s lawyer, Gerald J. Di Chiara, sought to use sexual orientation as a shield. Without much explanation of how he planned to introduce this fact or turn it to his advantage, Mr. Di Chiara offered it to the jury in his opening argument. Not only was Mr. Fortunato gay, Mr. Di Chiara said, but so was the main prosecution witness, Gary Timmins, 17, who has pleaded guilty to attempted robbery in exchange for his testimony.

In fact, Mr. Di Chiara continued, Mr. Fortunato had planned to tell his friends of his sexual orientation on the night in question. Luring a gay man out to a secluded lot in Sheepshead Bay was part of that plan, Mr. Di Chiara said.

Again, we find ourselves facing the question of whether the status of the criminal or the victim should be used to enhance a penalty for a crime. As I've argued all along, the answer should almost always be no -- and in this case, the muddling of group identity makes the lines even more interesting. Why don't we simply stick with the principle of equal justice for all individuals under the law -- and stick a needle in the arm of all these mooks for the death of Michael J. Sandy during the commission of a felony?

Posted by: Greg at 10:13 PM | No Comments | Add Comment
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